Title IX and Campus Sexual Assault under Trump

By Anne Marie Choup | February 7, 2017

Two important Trump education picks have either refused to endorse or openly criticized Title IX, the landmark 1972 federal law that prohibits discrimination on the basis of sex in any federally funded program. Betsy DeVos, Trump’s nominee for Education Secretary, refused to answer whether she would enforce the law during her confirmation hearing, while Jerry Falwell Jr., Trump’s pick to lead a federal task force on higher education, has stated he would like to curb the rules that require colleges to investigate campus sexual assault under Title IX. What might a rollback of Title IX under the Trump administration imply for the incidence of campus sexual assault and campus climates? The challenges and opportunities to fight sexual assault on campus are better understood when we consider 1) legislation in place concerning campus sexual assault, and 2) the role of formal and informal institutions in the enforcement of these laws. Specifically, enforcement of existing formal rules has helped to create campus climates in which it is clear that sexual violence is not tolerated, and in which victims are encouraged to come forward and report crimes because they can expect a quick, protective response. A change in federal policy will bring about a corresponding and equally important change in informal institutions, sending a chill over campuses that have only recently begun to work in earnest against campus sexual assaults.

Existing Legislation

Title IX is one of three major pieces of legislation concerning sexual violence on campus. This legislation requires campuses to report and investigate cases of sexual violence and requires that campus authorities trained on issues of domestic violence, sexual assault, and internal institutional hearing processes carry out the investigations.

Title IX is well-known for requiring women’s sports to be funded equitably. As part of the law’s protection against discrimination resulting from acts of violence against women, Title IX also calls for regulating campus reactions to sexual assault. Since violence against women has a chilling effect on women’s participation in academics and other activities on campus, violence systematically keeps women from accessing education. (It should be noted that not all sexual assault is heteronormative, but the vast majority appears to be, which provides us with a starting point for policy.) Title IX measures are clarified and enforced by the Department of Education, frequently in the form of Dear Colleague Letters (DCLs). DCLs are a quick way for the administration to convey clarification or modification of existing law. DCLs are elements of sexual assault prevention or enforcement easily modified within an administration or with an incoming different administration.

The most recent DCL germane to sexual assault and Title IX was issued in 2011, to clarify that in cases of alleged sexual assault, schools are to follow the ‘preponderance of the evidence’ standard in order to determine the accused’s responsibility. In other words, the accused will be considered responsible for sexual assault if evidence indicates that it is more likely than not that the accusations are true.

While the ‘beyond a reasonable doubt’ burden of proof is better known, that is the standard for determining guilt in criminal cases. The ‘preponderance of the evidence’ burden of proof is the standard for enforcing civil rights legislation as well as for issuing civil protective orders. Current Title IX regulations thus allow college campuses to proceed quickly to hearings that protect students in cases of sexual assault. Further, the 2011 DCL specifies that, “If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.”

The second key piece of legislation is the Clery Act of 1992. Clery calls for colleges to compile yearly public reports of crimes on campus (not just sexual violence), and to issue timely reports to the campus community when there is a continued threat to public safety. The Clery reporting process is mandated for all crimes reported to “Campus Security Authorities” or local police, and the campus adjudication, which may follow, takes place separately from any criminal proceedings.

Congress has revised the Clery Act various times, most recently in the 2013 re-authorization of the Violence Against Women Act (VAWA, first passed in 1994): the third key policy regulating campus responses to sexual assault. The 2013 re-authorized VAWA includes a specific section on college campuses called the Campus SaVE Act (Campus Sexual Violence Elimination Act), which, among other things, adds stalking to the list of Clery-reportable crimes. Public policy has thus been carefully crafted to facilitate formal institutional reporting processes, and to make crime information public and accessible.

Formal and Informal Institutions

There are both formal and informal mechanisms at work in institutional responses to sexual assault on US college campuses. As economist Douglass North has defined them, formal institutions are “rules that human beings devise” (North 1990, 4). In this case, they are comprised of the government legislation and regulations regarding sexual assault on campus based on the legislation described above. On the other hand, informal institutions are “conventions and codes of behavior” (North 1990, 4). With regard to campus rape, informal institutions are those social norms and attitudes that impact key factors in campus responses: the victim’s decision to report or not report; the typically gendered perspectives on victims and perpetrators (specifically, campus officials’ reactions to reports and how these are colored by perceptions of who rapists (in most cases, men) and victims (in most cases, women) are; and the rape myths that are part of rape culture prevalent society-wide. Changes in culturally derived informal institutions will typically lag behind changes in formal institutions, creating an inefficient tension between the two (North 1990, 54).

Such tensions are evident between the formal institutions facilitating reporting of sexual assault, and the informal institutional practice of under-reporting these crimes. Under-reporting of rapes and sexual assaults ranges from 95% on college campuses to 65% nation-wide. Yet, under-reporting does not get as much popular attention as false reports do. Indeed, there is much hand-wringing over the phenomenon of false accusation, even though it is really quite rare. Studies on false reporting of rape indicate rates ranging from 2% to 13.7%, with a couple of outliers at 41% and 45%. False accusations (where specific perpetrators are named) are especially harmful of course, and these are a small subset of false reports. Despite the infrequency of false reports and accusations, vivid accounts capture media attention. The Duke lacrosse case, for instance, is often referenced in discussions of campus sexual assault. Class differences, which often but do not always overlap with race differences, further complicate perceptions of perpetrators.

Because of enduring stereotypes of rapists as visibly disturbed strangers who leave obvious physical injuries on their victims, campus communities are often reluctant to view college students as assailants. Yet there are key commonalities between rapists who are incarcerated as a result of conviction, and rapists who are undetected by the criminal justice system and never brought to justice.

According to the ‘predator theory’ in psychology, each set of assailants tends to be repeat offenders. These aggressors usually brag about overpowering women, they typically assault acquaintances, and they often leave no clear physical injuries. Despite the actual similarities in criminal behavior between rapists who are caught and those who are not, general desires to avoid falsely accusing alleged assailants who do not conform to society’s image of how criminals look further complicates Title IX enforcement.

Also important for our consideration are systematic informal institutions of bias, typically gendered, against the accusers. Men are excused for sexual aggression because they are drunk, for instance, while women get less sympathy for an assault if they have been drinking. Instead, women are often assessed as being irresponsible for ‘allowing’ assault to take place.

Rape myths and gendered biases are part of the rape culture that surrounds us. Rape culture presents violence as sexy, and sex as violent, thus providing a permissive social context for sexual violence. Indeed, sexual violence is a reflection of the intersection of gender inequity and violence in society. Much of this violence is heteronormative and disproportionately victimizes women, although the sexism inherent in sexual assault is connected to other forms of oppression including homo- and trans-phobia.

In the end, both formal and informal institutions need to be utilized in the fight against sexual violence on campus.

While I have focused on the challenges presented by informal institutions that educational leadership will have to take into account, each of these challenges has its corresponding opportunity: informal institutions, like culture itself, are ultimately malleable. If the incoming administration shifts the focus to the rights of the accused, by limiting the response of campus sexual assault to the criminal justice system as suggested, this also limits on-campus victim protection options. All of this is likely to bring on a corresponding shift in cultural norms where victims are even less likely to report incidents of sexual assault, and campus communities are even less likely to take sexual assault seriously.

– Anne Marie Choup, Associate Professor of Political Science, University of Alabama in Huntsville